The accused shot an illegal diamond panner at night within
a fenced and protected area in Marange diamond fields on 3 July 2014.
He now faces a charge of murder; it being alleged that he
unlawfully, and with intent to kill, shot Farai Madenga with a shot-gun rifle
on the head thereby causing injuries from which the said Farai Madenga died.
The facts are not in dispute.
The issue raised by this matter is whether the guard on
duty, under an unlawful attack, can successfully raise the defence of private
defence and/or the defence of property.
The facts which are common cause are as follows:
1. The accused was employed by a private security company
as a security guard. He was deployed at Marange Resources diamond fields,
Chiadzwa, Marange.
2. On 3 July 2014, around 1900h, the accused was on duty
together with his patrol team-mate. He was armed with a 12-bore shotgun rifle.
His team mate was a canine handler with his patrol dog.
3. It was a dark night. Visibility was good only at 5
metres, and poor at 10 metres, none beyond 15 metres. They heard the sound of
illegal panning activity in their area of jurisdiction.
4. They decided to approach the scene at the same time
sending a radio message for reinforcements.
Before help arrived, they came under attack from a stone-throwing
mob.
5. The attackers
yelled and shouted that they will kill the accused and his workmate. They were
encircled.
6. The accused fired a warning shot to persuade the illegal
panners to disperse and desist from attacking them. The dog got too timid to
act, bark, or engage the hostile mob.
7. He fired the second shot as the attacking mob persisted.
The deceased was hit and the mob dispersed.
Section 257 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23] provides that defence of property will be a complete defence
to a crime which an accused is charged if the accused is charged with a crime
for his actions in defending his or her property if all of the following
requirements are satisfied:
(a) When the accused did or omitted to do the thing, the
unlawful act had commenced or was imminent;
(b) The accused's conduct was necessary to avert the
unlawful attack;
(c) The means used to avert the attack, unlawful attack,
were reasonable in all the circumstances;
(d) Any harm or injury caused by the accused's conduct;
(i) Was caused to the attacker and not to any imminent
third party; and
(ii) Was not grossly disproportionate to that liable to be
caused by the unlawful attack.
See S v Nicolle 1991 (1) ZLR 211 (SC); S v Magoge 1988 (1)
ZLR 163 (SC).
Section 258 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23] provides the more stringent requirements where there is a
killing in defence of property.
Where an accused is charged with the crime involving the
killing of another person, that accused is not entitled to rely upon the
defence of property unless the following requirements are all satisfied;
(a) The accused resorted to killing after taking all other
possible steps to protect the property concerned.
(b) The property concerned could not have been defended by
any other means except killing.
(c) The property concerned was of vital importance to the
accused.
(d) The accused reasonably believed that he or she would
not receive adequate compensation for any destruction, damage or injury caused
to the property concerned by the unlawful attack.
In determining whether or not these requirements have been
satisfied in any case, a court shall take due account of the circumstances in
which the accused found himself or herself, including any knowledge or capacity
in which he or she may have had, and any stress or fear that may have been
operating on his or her mind.
In determining whether or not any means used by a person to
avert an unlawful attack were reasonable, or whether or not any harm or injury
caused to an attacker was proportionate to liable to be caused by an unlawful
attack, a court will have regard to the nature of the property which the person
was trying to protect and its value to him or her.
In light of the above, this court has determined that not
only was the accused lawfully employed to protect the employer's assets from
theft, he was also entitled, by law, to protect himself in the event that
during his call of duty he is personally attacked. The events, of 3 July 2014,
show that the accused suddenly found himself under an unlawful attack from
sources unknown but whose threats to life were quite loudly and clearly stated.
It was a case of kill or be killed as the illegal panners,
instead of complying with a warning to disperse, actually announced their
intention to kill the guards. In our view, had the deceased not taken the step
he took, he may have featured in this case as the deceased.
The illegal panners approached a fenced-off mining location,
by night, with the full knowledge that they may encounter armed guards. When
they did encounter them, they did not flee but became aggressive and attacked
the guards first. Visibility was poor; their number was unknown; help was late
in coming; the dog had been cowed into submission by the atmosphere of gunshot
and noise.
In our view, the accused has met the requirements met out
in both section 257 and 258 of the Criminal Law Code. He is entitled to his
acquittal.
He is therefore found not guilty and is
acquitted.
